Kenneth Dale Nicodemus ( 2014 )


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  •                IN THE SUPREME COURT, STATE OF WYOMING
    
    2014 WY 135
    OCTOBER TERM, A.D. 2014
    October 30, 2014
    KENNETH DALE NICODEMUS,
    Appellant
    (Plaintiff),
    v.
    ROBERT LAMPERT, Director,                            S-14-0071
    Wyoming Department of Corrections;
    EDDIE WILSON, Warden, Wyoming
    State Penitentiary; and DOTTI
    WIXSON,
    Appellees
    (Defendants).
    Appeal from the District Court of Carbon County
    The Honorable Wade E. Waldrip, Judge
    Representing Appellant:
    Pro se
    Representing Appellees:
    Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
    Attorney General; James Michael Causey, Senior Assistant Attorney General;
    Susan G. O’Brien, Senior Assistant Attorney General
    Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
    NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
    Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
    Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
    made before final publication in the permanent volume.
    DAVIS, Justice.
    [¶1] Inmate Kenneth Nicodemus appeals from the denial of a Wyoming Rule of Civil
    Procedure 60(b) motion for relief from a district court order that dismissed a civil suit
    against three employees of the Wyoming Department of Corrections (DOC). We affirm.
    ISSUES
    [¶2]    Nicodemus raises two issues, which we restate as follows:
    1. Did the district court abuse its discretion by ignoring Bear Cloud v. State, 
    2013 WY 18
    , 
    294 P.3d 36
    (Wyo. 2013) (Bear Cloud II), when it denied his Rule 60(b) motion?
    2. Did his failure to receive the defendants’ response to his motion deprive him of
    due process?
    FACTS
    [¶3] In 1992, Nicodemus pled guilty to two counts of first-degree murder and one
    count of felony larceny, for which he was sentenced to two consecutive life sentences and
    a sentence of eight to ten years to be served consecutively to the life sentences.
    Approximately five years later, while serving the first life sentence, he attempted to
    escape from the Wyoming State Penitentiary. A conviction for that offense netted
    Nicodemus an additional sentence of two to four years, to be served concurrently with his
    first life sentence.1
    [¶4] In 2010, the legislature amended Wyo. Stat. Ann. § 7-16-205(a) by creating a new
    paragraph (i) dealing with withholding from a prisoner’s earnings:
    Unless the prisoner is serving a sentence of death or
    life without the possibility of parole or is subject to
    mandatory savings under W.S. 25-13-107(b)(i), ten percent
    (10%) shall be credited to the prisoner’s personal savings
    account within the correctional facility’s trust and agency
    account, until the prisoner’s account has a balance of one
    thousand dollars ($1,000.00). Once the prisoner’s personal
    savings account balance reaches one thousand dollars
    ($1,000.00), the income otherwise distributed to the
    prisoner’s savings account under this paragraph shall be
    1
    As Nicodemus points out, an attempt to escape makes an inmate ineligible for parole on the offense he
    was serving at the time of the attempt. Wyo. Stat. Ann. § 7-13-402(b)(ii) (LexisNexis 2013). The statute
    has no impact on this case.
    1
    distributed to the prisoner as provided by paragraphs (ii)
    through (vi) of this subsection. Funds in the prisoner’s
    personal savings account shall be paid to the prisoner upon
    parole or final discharge[.]
    2010 Wyo. Sess. Laws, ch. 43, § 1. The statute prevents a prisoner from using the first
    $1,000 he earns for prison labor until he is paroled or released, when it is paid to him.
    Appellant asserts that the purpose of this statute is to assure that an inmate who has been
    paroled or finally discharged from his sentence has funds to pay expenses until he can
    find employment or another source of legitimate revenue so that he is not tempted or
    forced to steal or commit other crimes to keep body and soul together. He does not
    expect to ever be paroled or released, and he anticipates that he will die in prison.
    However, when the amendment went into effect in July of 2010, the DOC began
    withholding ten percent of Nicodemus’ monthly earnings from penitentiary labor and
    crediting that amount to his mandatory savings account.
    [¶5] On October 20, 2011, Nicodemus filed a 42 U.S.C. § 1983 civil rights action in the
    district court for Carbon County. He asserted that Appellees violated his federal
    constitutional right to due process by placing his earnings in the mandatory savings
    account, from which he could not withdraw them without a hearing. He contended that
    Appellees lacked statutory authority to withhold his property from him because he was
    serving a sentence of life imprisonment without the possibility of parole, and that he
    therefore belonged to a class of inmates which the newly amended § 7-16-205 expressly
    excluded from its income-withholding provisions.
    [¶6] The defendants moved to dismiss the original and an amended complaint. The
    district court granted the motion on March 14, 2012.2 The court concluded that the
    legislature’s use of the phrase “life without the possibility of parole” in § 7-16-205(a)(i)
    had to be viewed in light of other statutory provisions relating to that subject, particularly
    § 6-10-301(c). In 2010, that subsection read as it had when it was enacted in 1996:3
    A sentence specifically designated as a sentence of life
    imprisonment without parole is not subject to commutation
    by the governor. A sentence of life or life imprisonment
    which is not specifically designated as a sentence of life
    imprisonment without parole is subject to commutation by the
    governor. A person sentenced to life or life imprisonment is
    not eligible for parole unless the governor has commuted the
    person’s sentence to a term of years.
    2
    Neither the defendants’ motions nor a transcript of the motion hearing were included in the record on
    appeal.
    3
    Subsection (c) was amended in 2013, but those amendments have no effect on this appeal.
    2
    1996 Wyo. Sess. Laws, ch. 73, § 1.
    [¶7] The district court noted that Nicodemus’ life sentences were not designated as
    sentences of “life without parole,” and that the governor could therefore commute them
    to terms of years. Citing to Bear Cloud v. State, 
    2012 WY 16
    , 
    275 P.3d 377
    (Wyo. 2012)
    (Bear Cloud I), the court concluded that, although commutation and subsequent parole
    from such sentences are rare, parole was nevertheless possible. It held that Nicodemus
    was not therefore serving a sentence of life without the possibility of parole, and that § 7-
    16-205 therefore empowered—and in fact required—the DOC to place a portion of his
    inmate income in his savings account until the balance reached $1,000.00, and to deny
    him the right to withdraw those funds from the account.
    [¶8] Nicodemus did not appeal the order dismissing his case. Instead, nearly a year
    later, he filed a motion for relief from the order of dismissal under W.R.C.P. 60(b)(5) and
    (6). He claimed that the ruling was incorrect because it was based on this Court’s
    decision in Bear Cloud I, which had since been vacated by the United States Supreme
    Court and then supplanted by our decision in Bear Cloud II.4 He relied upon language
    indicating that, for purposes of sentencing juveniles, a sentence to life as a matter of law
    allows no realistic possibility of parole because it depends upon executive clemency.
    Bear Cloud II, ¶ 
    36, 294 P.3d at 45-46
    .
    [¶9] In late April of 2013, the district court denied Nicodemus’ Rule 60(b) motion.
    The court observed that its earlier order of dismissal rested on the distinction in § 6-10-
    301(c) between life sentences which were and were not specifically designated as
    confining a prisoner to life without parole, and on its conclusion that the plain language
    of § 7-16-205(a)(i) must be said to have incorporated that distinction. The court also
    noted that it referred to Bear Cloud I in its order only to further explain the statutory
    nature of any life sentence that was not expressly designated by a sentencing court as
    being “life without parole,” and that consequently its explanation—and Bear Cloud I
    generally—were not the basis for its decision to dismiss Nicodemus’ suit.
    [¶10] Nicodemus timely appealed the denial of his Rule 60(b) motion.
    DISCUSSION
    The Ruling on the W.R.C.P. 60(b) Motion
    4
    The Supreme Court remanded the case to us for reconsideration in light of its intervening decision in
    Miller v. Alabama, ___ U.S. ___, 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012), relating to the imposition of
    life without parole sentences on juveniles. Bear Cloud v. Wyoming, ___ U.S. ___, 
    133 S. Ct. 183
    , 
    184 L. Ed. 2d 5
    (2012) (mem.).
    3
    [¶11] This Court reviews decisions disposing of Rule 60(b) motions for an abuse of
    discretion. We must determine whether the trial court’s decision was reasonable when
    the record is viewed in the light most favorable to that decision and to the prevailing
    party. We will reverse an order denying a Rule 60(b) motion only if the movant
    establishes that the trial court was clearly wrong. Campbell v. Hein, 
    2013 WY 131
    , ¶¶ 8-
    9, 
    311 P.3d 165
    , 167 (Wyo. 2013); Barron v. Barron, 
    834 P.2d 685
    , 687 (Wyo. 1992).
    [¶12] Nicodemus argues that the district court abused its discretion by failing to
    recognize the significance of our Bear Cloud II decision to the question posed by his civil
    rights complaint – i.e., the meaning of the legislature’s choice of the phrase “life without
    the possibility of parole” in Wyo. Stat. Ann. § 7-16-205(a)(i). Because the district court
    clarified that its ruling did not rely upon the two Bear Cloud decisions, we will first
    examine its interpretation of that language.
    [¶13] Statutory construction presents a question of law that we examine de novo. In
    interpreting statutes, our primary goal is to determine the legislature’s intent. We
    therefore construe each statutory provision in pari materia, giving effect to every word,
    clause, and sentence according to their arrangement and connection. To ascertain the
    meaning of a given law, we also consider all statutes relating to the same subject or
    having the same general purpose and strive to interpret them harmoniously. We presume
    that the legislature has acted in a thoughtful and rational manner with full knowledge of
    existing law, and that it intended new statutory provisions to be read in harmony with
    existing law and as part of an overall and uniform system of jurisprudence. When the
    words used convey a specific and obvious meaning, we need not go farther and engage in
    statutory construction. Estate of Dahlke ex rel. Jubie v. Dahlke, 
    2014 WY 29
    , ¶¶ 36-37,
    
    319 P.3d 116
    , 125-26 (Wyo. 2014) (citing Rock v. Lankford, 
    2013 WY 61
    , ¶ 19, 
    301 P.3d 1075
    , 1080-81 (Wyo. 2013); Redco Const. v. Profile Props., LLC, 
    2012 WY 24
    , ¶¶ 26,
    37, 
    271 P.3d 408
    , 415-16, 418 (Wyo. 2012)).
    [¶14] Until 1996, the only sort of determinate5 life sentence available in Wyoming was
    that characterized in Wyo. Stat. Ann. § 6-2-101(b) as “life imprisonment according to
    law.” See Sincock v. State, 
    2003 WY 115
    , ¶ 12, 
    76 P.3d 323
    , 330 (Wyo. 2003); Schultz v.
    State, 
    751 P.2d 367
    , 368 n.1 (Wyo. 1988). An inmate serving such a sentence could not
    be paroled under Wyo. Stat. Ann. § 7-13-402(a) (Michie 1995), which provided that the
    state board of parole was empowered to “grant a parole to any person imprisoned . . .
    under sentence, except a life sentence.” Olsen v. State, 
    2003 WY 46
    , ¶ 190, 
    67 P.3d 536
    ,
    603 (Wyo. 2003). However, an inmate could be paroled or released if the Governor
    commuted his life sentence to a term of years. Weldon v. State, 
    800 P.2d 513
    , 514 (Wyo.
    1990).
    5
    This is to be distinguished from an indeterminate sentence having a minimum term of a specified
    number of years and a maximum term which expires at the end of an inmate’s life. See generally Wyo.
    Stat. Ann. § 7-13-201 (LexisNexis 2013).
    4
    [¶15] In 1994, the Wyoming Constitution was amended to add Art. 3, § 53, which
    empowered the legislature to create a penalty of “life imprisonment without parole” that
    would not be subject to commutation. Two years later, the legislature enacted a statute
    which permitted a sentence of “life imprisonment without parole” for specific crimes to
    be designated by statute. 1996 Wyo. Sess. Laws, ch. 73, § 1; Wyo. Stat. Ann. § 6-10-
    301(a) (Michie 1997).
    [¶16] Section Two of the law amended Wyo. Stat. Ann. § 7-13-402(a) to provide that
    the parole board could grant parole on any sentence except “a sentence of life
    imprisonment without parole or a life sentence.” Section Two of the 1996 act also added
    the new form of life sentence to the penalties available under Wyo. Stat. Ann. § 6-2-306
    for offenders repeatedly convicted of sexual assault. 1996 Wyo. Sess. Laws, ch. 73, § 2.
    Five years after passage of the 1996 act, the legislature amended the first-degree murder
    statute, Wyo. Stat. Ann. § 6-2-101, to add life without parole to the existing sentencing
    options of death and life according to law. 2001 Wyo. Sess. Laws, ch. 96, § 2.
    [¶17] When the language of § 6-10-301 is viewed in light of other legislation passed
    since it was enacted, it is evident that the legislature created a term of art 6 by appending
    the words “without parole” to the words “life sentence.” By themselves, the latter refer
    to a sentence from which parole is available only in those relatively rare cases in which
    the Governor has exercised clemency and commuted the sentence to a term of years.
    This type of sentence is also known by the statutory term “life according to law” and,
    more colloquially, as a “straight life” sentence. However, if a judge or the legislature
    specifically designates a life sentence as one “without parole” or “without the possibility
    of parole,” there can be no commutation and therefore no parole under any
    circumstances.
    [¶18] That was the state of affairs in 2010, when the legislature created § 7-16-205(a)(i)
    by enacting 2010 Wyo. Sess. Laws, ch. 43, § 1. As noted above, paragraph (a)(i)
    mandates that ten percent of an inmate’s earnings from prison labor be credited to his
    personal savings account until it attains a balance of one thousand dollars. Those funds
    are to be paid to the inmate upon parole or final discharge of his sentence. Of key
    significance to Nicodemus’ case, the legislature created an exemption for inmates under a
    death sentence or a sentence of “life without the possibility of parole.”
    [¶19] Relying on § 6-10-301(b), the district court concluded that Nicodemus’ life
    sentence did not fall within that exemption because it was not specifically designated as a
    sentence of life without parole, and that was the type of life sentence addressed in the
    6
    Words or terms of art are those that have a “specific, precise meaning in given specialty, apart from its
    general meaning in ordinary contexts.” Black’s Law Dictionary 1700 (10th ed. 2014).
    5
    exemption.7 That view is consistent with our discussion above. Consequently, if the
    question was before us, we would conclude that the district court properly disposed of
    Nicodemus’ civil rights lawsuit. We recognize that Nicodemus and others similarly
    situated have little hope of ever leaving the prison system, but we are compelled to
    conclude, based on the language of the statute, that the legislature intended for the
    Department of Corrections to maintain a fund for that remote contingency.
    [¶20] What is before us, given Nicodemus’s Rule 60(b) motion, is whether our Bear
    Cloud decisions have any bearing on what the legislature meant by its use of the term
    “life without the possibility of parole” in § 7-16-205(a)(i). That statutory provision was
    enacted in 2010 while Bear Cloud’s criminal prosecution was still in its pretrial stage.
    See Bear Cloud I, ¶¶ 
    10-12, 275 P.3d at 384
    . We fail to see how our two appellate
    decisions in 2012 and 2013 could have affected legislative decisions made more than two
    years earlier. More importantly, the portions of the Bear Cloud decisions on which
    Nicodemus relies were not concerned with the distinctions between a “life sentence” and
    a “sentence of life without the possibility of parole” and the legislature’s use of those
    terms of art.
    [¶21] Instead, those two decisions and the United States Supreme Court decision in
    Miller which prompted the second decision dealt with the practical effect of what is
    known in Wyoming as a life sentence, or life as a matter of law. As noted above, parole
    from such a sentence is only available in those relatively rare cases where the sentence is
    commuted to a term of years. At the risk of oversimplification, the Bear Cloud and
    Miller opinions concerned whether the possibility of parole presented by such a sentence
    was sufficiently realistic and meaningful to meet constitutional strictures on the
    sentencing of juveniles who have committed homicide offenses. See Bear Cloud I, ¶¶
    
    75-77, 275 P.3d at 407-09
    ; Bear Cloud II, ¶¶ 
    33-38, 294 P.3d at 45-46
    . That question is
    altogether different than the question posed by Nicodemus’ civil suit.
    [¶22] For that reason, we conclude that the district court correctly applied the law and
    did not abuse its discretion in denying Nicodemus’ Rule 60(b) motion.
    The Failure to Receive and Inability to Reply to the Defendants’ Response to the
    Rule 60(b) Motion
    7
    Nicodemus suggests this reading of the statute is faulty because, even though one may be serving a
    straight life sentence, he likely will be unable to reap the benefit of the money credited to his savings
    account. In effect, he suggests the legislature could not have intended such a futile act. However, that
    position ignores the prospect that such an account may provide an added incentive for an inmate to
    conduct himself to show he is worthy of commutation.
    6
    [¶23] Nicodemus argues he was denied due process when, due to his failure to receive
    the defendants’ response to his motion,8 he was unable to reply to that pleading.9 That
    argument is based upon W.R.C.P. 6(c)(1), which allows a moving party to reply to a
    response to his motion. However, a party who claims that his right to due process has
    been infringed must show that a deviation from procedural rules affected protected
    interests in an impermissible way—i.e., that he was denied fundamental fairness. Brush
    v. Davis, 
    2013 WY 161
    , ¶ 16, 
    315 P.3d 648
    , 653 (Wyo. 2013).
    [¶24] Nicodemus has not told us what he might have said in a reply which might have
    affected the outcome, and his discussion of the propriety of that dismissal in this appeal
    deviates little from the discussion contained in the memorandum he presented to the trial
    court. Although his appellate brief formatted his argument differently, Nicodemus did
    not supplement or alter his argument in any significant way. We cannot therefore say that
    the failure to receive the defendants’ response to the motion and resulting inability to file
    a reply brief compromised Nicodemus’ ability to argue his position in an impermissible
    or fundamentally unfair way. Consequently, we reject his claim that he was deprived of
    due process.
    CONCLUSION
    [¶25] The district court did not abuse its discretion when it denied Nicodemus’ W.R.C.P.
    60(b) motion, and he has failed to show that his failure to receive the response to that
    motion deprived him of due process. We therefore affirm the district court’s denial of his
    motion.
    8
    The response was filed March 20, 2013, and served by mail using Nicodemus’ state penitentiary address
    in Rawlins, even though he had mailed his motion from the medium security facility in Torrington to
    which he had been transferred. He asserts he knew nothing about the response until reading the order
    denying his motion which was filed on April 25, 2013, and that neither of the correctional facilities had
    any record of receiving the response.
    9
    In the course of presenting that argument, he also asserts that his failure to receive that document
    deprived the district court of the authority to consider the defendants’ response and suggests that such a
    lack of authority be deemed a jurisdictional defect. No authority was provided for either proposition.
    Accordingly, we will not consider them. Serna v. State, 
    2013 WY 87
    , ¶ 7, 
    305 P.3d 1142
    , 1143 (Wyo.
    2013).
    7